GRIEVANCE ADMINISTRATOR v HIBLER

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We granted leave in this case to decide whether the Attorney
Grievance Commission and the Attorney Discipline Board have
jurisdiction to proceed with a formal complaint against a
disbarred lawyer who violates an order of discipline by
continuing to practice law. We hold that the AGC and the ADB do
have such jurisdiction, and that it continues for the entire
period in which the disbarred lawyer is ineligible to seek
reinstatement. We thus remand this matter to the ADB for further
proceedings consistent with this opinion.

I

By order of the Attorney Discipline Board, Thomas M. Hibler’s
license to practice law was revoked effective February 18, 1994.
In December 1995, the Attorney Grievance Commission authorized
the Grievance Administrator to file a formal complaint against
Mr. Hibler, alleging that he had held himself out as an attorney
after his disbarment, in violation of MCR 9.119, and had
committed other acts of misconduct.

The Attorney Discipline Board dismissed the complaint, without
prejudice, on the basis that it does not have jurisdiction over a
person whose license to practice law has been revoked, except in
regard to acts of misconduct allegedly committed during the
period of licensure. The ADB relied on Grievance Administrator
v Attorney Discipline Bd, 447 Mich 411; 522 NW2d 868 (1994).

Grievance Administrator involved several unrelated
discipline cases that the ADB had dismissed on the ground that
the respondents no longer were within the jurisdiction of the ADB
because their licenses to practice law had been revoked in
earlier proceedings. This Court held that the ADB retained
jurisdiction under the Michigan Court Rules to consider
misconduct committed during the period of licensure by lawyers
who later were disbarred. We emphasized, however, that the ADB
has discretion to enter appropriate orders in discipline cases,
including orders of discontinuance "if, in the particular
circumstances of an individual case, that is the appropriate
order." 447 Mich 413.

The ADB would limit our holding in Grievance Administrator
to the factual circumstance present in that case, i.e., to
misconduct that occurs within the period of licensure, and would
exclude misconduct that occurs after revocation. Our decision in Grievance
Administrator was not so narrow, however.

Before announcing our holding in Grievance Administrator,
we stated that we found the Grievance Administrator’s arguments
to be persuasive. Two paragraphs earlier, we had summarized those
arguments as follows:

The Grievance Administrator argues that the court rules
continue to govern the conduct of an attorney whose license is
revoked, (MCR 9.119.) as well as the eligibility requirements and
procedure for reinstatement. (MCR 9.123, 9.124.)

As the Grievance Administrator argued in that case and
observes in the instant case, the court rules do not distinguish
between active lawyers and those whose licenses to practice law
have been revoked, for purposes of the applicability of
subchapter 9.100 of the MCRs. While it is true that 9.101(5)
defines "attorney" to mean "a person regularly
licensed or specially admitted to practice law in Michigan,"
the word "attorney" is used at various places in
subchapter 9.100 to include all persons who have obtained
licenses to practice law, regardless of whether a license is
presently in effect or has been revoked.

For instance, MCR 9.119 governs the conduct of
"disbarred, suspended, or inactive attorneys," and its
provisions refer to "attorneys" whose licenses have
been revoked. See also MCR 9.123, which discusses the eligibility
for reinstatement of an "attorney" whose license to
practice law has been revoked, and MCR 9.124, which discusses the
steps that an "attorney" must take to be reinstated.

III

We hold that where a disbarred lawyer practices or attempts to
practice law during the five-year period in which the lawyer is
ineligible to seek reinstatement,[2]the AGC and the ADB may proceed
with a formal complaint against the lawyer. If the misconduct is
proven, the result will be an additional term of five years in
which the lawyer is precluded from petitioning for reinstatement.
For example, if the ADB were to find that a disbarred lawyer had
represented a client in the second year after the lawyer’s
license was revoked, the new total period of ineligibility for
reinstatement would be eight years, i.e., the three years of
ineligibility that remained after the initial disbarment plus an
additional five years.

The situation is different, however, if the alleged misconduct
occurs after a disbarred lawyer has regained eligibility for
licensure, but has not sought reinstatement. In that
circumstance, the disbarred lawyer has no more authority to act
for others than does a person who never possessed a license to
practice law. Such a person is thus subject to an action for the
unauthorized practice of law. SBR 16 and MCL 600.916; MSA
27A.916.[3]In addition, the Grievance
Administrator may proceed against a disbarred lawyer for contempt
of court if the lawyer practices or attempts to practice law
without seeking reinstatement, or after being denied
reinstatement. MCR 9.127(B).[4]

IV

For the reasons given, we vacate the discontinuance order of
the Attorney Discipline Board and direct the ADB to reconsider
the underlying discipline case. On remand, the ADB must determine
whether, in light of all the circumstances, a discontinuance is
the appropriate resolution of this case. [5]

I concur in the result, and I agree that the Attorney
Grievance Commission and the Attorney Discipline Board have
jurisdiction to proceed against a disbarred lawyer who violates
an order of discipline by continuing to practice law. I write
separately because I disagree with the majority’s decision to
limit the Attorney Discipline Board and Attorney Grievance
Commission’s jurisdiction to the period during which the
disbarred lawyer is ineligible to seek reinstatement.

The majority states:

The situation is different, however, if the alleged misconduct
occurs after a disbarred lawyer has regained eligibility for
licensure, but has not sought reinstatement. In that
circumstance, the disbarred lawyer has no more authority to act
for others than does a person who never possessed a license to
practice law. (Slip op, p. 5).

This is an irrelevant difference without a distinction. A
disbarred attorney who is eligible to reapply for admission to
the bar is still in a very different position than one who was
never licensed as an attorney. The disbarred attorney was
previously held out to the public as a member of the bar. The
disbarred attorney is also able to be reinstated without
undergoing a character and fitness review. Kelly v Bd of Law
Examiners, 454 Mich 1206 (1997). [6]

Because this Court has decided (a decision with which I
continue to disagree) that an attorney can never be truly
permanently disbarred, but always will remain eligible to apply
for reinstatement, I believe that the ADB and AGB should retain
jurisdiction over the disbarred attorney when he is accused of
practicing law without a license.

[1]On our own motion, we directed
the parties to brief the question whether the Court should hold
that an order of permanent disbarment is available to the ADB as
discipline for the offense of engaging in the practice of law
following an order of revocation. We do not reach that issue in
this case, but will be considering the question as an
administrative matter.

[2]MCR 9.123(D)(2) provides that a
disbarred lawyer may not seek reinstatement to the practice of
law until five years after a license is revoked. Under subrule B,
it must be proven by clear and convincing evidence that the five
years have elapsed, and that the lawyer did not practice or
attempt to practice law during that time.

The State Bar of Michigan is hereby authorized and empowered
to investigate matters pertaining to the unauthorized practice of
law and, with the authority of its Board of Commissioners, to
file and prosecute actions and proceedings with regard to such
matters.

MCL 600.916; MSA 27A.916 provides:

It is unlawful for any person to practice law, or to engage in
the law business, or in any manner whatsoever to lead others to
believe that he is authorized to practice law or to engage in the
law business, or in any manner whatsoever to represent or
designate himself as an attorney and counselor, attorney at law,
or lawyer, unless the person so doing is regularly licensed and
authorized to practice law in this state. Any person who violates
the provisions of this section is guilty of contempt of the
supreme court and of the circuit court of the county in which the
violation occurred, and upon conviction is punishable as provided
by law. This section does not apply to a person who is duly
licensed and authorized to practice law in another state while
temporarily in this state and engaged in a particular matter.

The administrator may enforce a discipline order or an order
granting or denying reinstatement by proceeding against a
respondent for contempt of court. The proceeding must conform to
MCR 3.606. The petition must be filed by the administrator in the
circuit court in the county in which the alleged contempt took
place, or in which the respondent resides, or has or had an
office. Enforcement proceedings under this rule do not bar the
imposition of additional discipline upon the basis of the same
noncompliance with the discipline order.

[5]As noted, although we found
jurisdiction in Grievance Administrator, we also
emphasized that the ADB has discretion to enter appropriate
orders in discipline cases, including orders of discontinuance
without prejudice to further proceedings, where appropriate. For
example, where the alleged misconduct is that a disbarred
attorney has engaged in an isolated act that constitutes the
practice of law, but there are no other allegations of
wrongdoing, the ADB reasonably might conclude, in a particular
case, that a formal proceeding under MCR 9.115 is not
appropriate. In this regard, we noted above that the Grievance
Administrator has authority under MCR 9.127(B) to initiate a
contempt action to enforce a discipline order. The administrator
argues that the use of this procedure does not preclude the AGC
from also authorizing a formal complaint, and that the failure of
the ADB to conduct formal proceedings will impede the
administrator’s ability to later produce full character evidence,
should a disbarred lawyer seek reinstatement. While it is true
that the initiation of a contempt action does not bar the filing
of a formal complaint, neither is the ADB precluded from
considering the existence of such a proceeding in determining an
appropriate order in a particular case.

[6]As I stated in Kelly, I
believe the Board of Law Examiners has and should continue to
have the discretionary authority to require such a review.